Judge: Richard Y. Lee, Case: 30-2019-01074499, Date: 2022-09-08 Tentative Ruling

Defendant Loan Nguyen Vyas (“Defendant”) moves for terminating sanctions against the entire action by Plaintiff Andrea Greenway (“Plaintiff”) due to Plaintiff’s failure to comply with a prior Court order compelling her to attend a mental health examination.  Defendant also requests monetary sanctions against Plaintiff in the amount of $5,232.00.

The Court may impose a terminating sanction and dismiss the action of any party engaging in conduct that is a misuse of the discovery process.  (Code Civ. Proc., § 2023.030(d).)  Code of Civil Procedure section 2023.010(g) defines the misuse of the discovery process to include “[d]isobeying a court order to provide discovery.” 

On April 7, 2022, Defendant’s Motion to Compel Plaintiff to appear for a mental health examination  was granted.  (Declaration of Marc Lafer (“Lafer Decl.”), ¶ 2, Ex. A.)  Plaintiff was ordered to appear for examination by Nathan Lavid, M.D., on April 29, 2022 from 9:00 a.m. to 5:00 p.m.  (Ibid.)  Plaintiff arrived at the examination about two hours past the start time, spoke briefly with Dr. Lavid, began to complete the preliminary paperwork, and then left the office, claiming she had received an eviction notice.  (Declaration of Nathan Lavid, M.D., ¶ 5.)

On May 3, 2022, counsel for Defendant sent a meet and confer letter to advise that Dr. Lavid was willing to reschedule but the cost for a new examination would be $4,800.00.  (Lafer Decl., ¶ 4.)  Counsel offered either May 20 or May 27 as new dates for the examination.  (Id., Ex. B.)  Counsel learned the next day that Plaintiff’s counsel had filed a motion to be relieved as counsel for Plaintiff.  (Id., ¶ 5.)

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  ‘Discovery sanctions “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”’  [Citation.]  If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.  ‘A decision to order terminating sanctions should not be made lightly.  But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’  [Citation.]”  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Here, no monetary sanctions have been imposed against Plaintiff.  The Court’s April 7, 2022 order compels Plaintiff to attend a mental examination, but Plaintiff had not failed to appear for examination before that Motion was filed.  Rather, Defendant brought that Motion to obtain leave of Court for the examination, as required by Code of Civil Procedure section 2032.310.  (See ROA 126.)  Therefore, no lesser sanctions have been imposed against Plaintiff.  In this light, the Court finds Defendant’s request for terminating sanctions to be premature.  The Motion as to the request for terminating sanctions is, accordingly, DENIED.

The Court may impose monetary sanctions “ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  (Code Civ. Proc., § 2023.030(a).)  The Court finds Plaintiff’s failure to appear for examination on April 29 as ordered to be a misuse of the discovery process, warranting sanctions against Plaintiff.  The Court awards Defendant a total of $5,232.00 in monetary sanctions against Plaintiff to be paid within 30 days.  Plaintiff is ordered to appear for the examination with Dr. Lavid within 30 days, unless otherwise stipulated to by Defendant.  The Court does not view its orders as mere suggestions.  Failure to pay the discovery sanction ordered today or to appear for her examination will likely result in a future terminating sanction.

Defendant to give notice.